Wednesday, August 17, 2005

Pity Those NYU Law Students

In the Washington Post today, I came across an utterly awful argument against the nomination of John Roberts to the Supreme Court. Since the author is listed as the faculty member of a law school, I did not find the conclusion that John Roberts is evil surprising. I did find myself baffled, however, that the writer of such an awful piece is Deborah Ellis, the assistant deanof New York University Law School.

The premise of the piece is that John Roberts is a state's rights advocate who correspondingly wants to take away women's rights by failing to extend the protection of federal law to certain areas involving women's issues. Fair enough. But, wow, her column is nonsensical!

Let's read the piece together, shall we?

Questions For John Roberts By Deborah Ellis

The furor over the recent NARAL Pro-Choice America ad about John Roberts and abortion clinics is unfortunate in that it obscures an important issue that raises serious questions: John Roberts's role as deputy solicitor general in the court case Bray v. Alexandria Women's Health Clinic. Excuse me if this sentence did not foreshadow a coming "fake but accurate" argument. Both sides of the aisle panned the NARAL ad as misleading, if not defamatory. The TV ad portrayed Roberts as a supporter of abortion clinic bombers because of a brief he submitted in the above-referenced case. Conveniently absent from such characterization was context and purpose. Roberts submitted the amicus brief, in his role as Justice Department advocate on behalf of the U.S. Government under George H.W. Bush's presidency, to support an interpretation of federal law backed by the administration he was working for. In other words, he was doing his job, not filing a brief necessarily outlining his own personal beliefs. But no matter, the furor over the ad "obscures an important issue." [Fake But Accurate bells are ringing!] That issue is:

In that case, Roberts argued on the side of Operation Rescue for a narrow interpretation of one of our nation's civil rights laws. Good grief. Where is the issue? Being shocked that a conservative administration was pushing for a narrow interpretation of a law is akin to bewilderment that the sun rises from the east and settles in the west every single day!

So now we have our issue. And Ms. Ellis's argument picks up downhill speed from here.

The case was not about clinic bombings, lawful protest outside abortion clinics or even abortion rights. As Justice John Paul Stevens said in his 1993 dissenting opinion, the case was "about the exercise of Federal power to control an interstate conspiracy to commit illegal acts."

OK, so we now have the set up that perhaps the NARAL ad just took the wrong angle. Roberts wasn't sleeping with the abortion bombers as the NARAL ad suggested. [Insert mock sigh of relief here.] But there is a "serious question" to be answered, she said, so Roberts must be guilty of something nearly as heinous. Rather than being shocked or outraged, you might start crying tears of laughter after the next paragraph when you find out his tragic sin.

Why were these cases necessary? For a decade leading up to 1993, Operation Rescue and other national groups organized massive human blockades to forcibly prevent women from entering abortion clinics. This was a strategy designed to overwhelm small police forces so the blockaders could not be arrested. I argued in the Supreme Court on behalf of women's health clinics and female patients in the Bray case. (As an aside, let me just note that Ms. Ellis has what we would call motive here: sour grapes. She lost to Mr. Roberts's position in this 1993 case. She might have a reason to hold a grudge.)

Here is where it gets good:We used a Reconstruction-era civil rights law to obtain protection from federal marshals so women could safely enter abortion clinics. The 1871 law was enacted for exactly this purpose: to prevent mobs from conspiring to take away the civil rights of newly freed slaves. (emphasis added)

This is John Roberts's sin. He argued the administration's position that an 1871 lawprotecting newly freed slaves did not provide protection to free women in 1983 who were seeking to enter an abortion clinic! I am blown away. Who knew?! Where is the outrage?

Before moving on, this is the part where the attempt by liberal talking heads to try to portray as "activist judges" the conservative justices with strict constructionist tendencies gets just a tad absurd. Is a judge who believes that a law passed in 1871 to protect freed slaves does not protect women in 1993 from obtaining an abortion an "activist" or vice versa? You make the call. But if your call is that the one seeking to make Ms. Ellis's argument is not the activist, I wonder what dictionary you're reading.

If by the end of her article you still are not convinced that Ms. Ellis is the activist, then let me know how your last MoveOn.org meeting went. Let's move on ourselves, and let Ms. Ellis try to convince us that Roberts is the local chauvinist pig:

In the summer of 1991, during a particularly large blockade in Wichita, John Roberts went on national television to defend the government's decision under President George H.W. Bush to file a friend-of-the-court brief on the side of Operation Rescue. That brief asked a federal court to stay implementation of an injunction against the blockades that had already been issued. So far so good, we're back to the facts.In contrast to Little Rock in 1957, when federal marshals protected African American children trying to integrate schools, Roberts argued that women should be left to whatever protection the states could provide, however inadequate.

This is the part where an event happening solely within the borders of a state (protection of a private business and private citizens) and, at the time, a matter solely within the realm of state law, is suddenly conflated into a federal cause because the advocate cannot get what he or she wants. Nevermind the laws on the books, take the issue to federal court and try to do an end run around the legislature. More on that in a minute.

(Also, we're getting a little closer to par for the liberal course here. We have the anti-choice/women theme, and now the disingenuous allusion to race meant to imply that Roberts might also take away the civil rights of minorities. Only thing missing is the use of the word "Bushitler" or "President Chimpy McChimperson" or some such tangental jab at the president.)

To be fair, in Roberts's Supreme Court argument he pointed out that the Justice Department was defending the proper interpretation of the 1871 law, not Operation Rescue's unlawful conduct. (emphasis added)Ah ha! The truth comes out finally in the fifth paragraph...b-b-b-b-b-b-ut (there is always a "but" when the weak position is conceded):But no courtroom caveat can erase the impact of the federal government's lending its weight on the side of the mob intent on stopping women from exercising a constitutional right. It was a devastating blow. (emphasis added)

"Courtroom caveat"? You mean, the law, by chance? And are you saying that although women have a constitutional right to an abortion via Roe v. Wade, that the federal government is tasked with protecting each and every abortion clinic nationwide? I have the right to freedom of speech and assembly, but it is up to Officer Friendly of the state or local police to ensure that I get the proper protection to do so when that right is threatened, not G.I. Joe.

Newsflash: Little Rock 1957 was an extraordinary use of federal troops, not the norm.

We will never know how much the Justice Department's position influenced the court's decision in the Bray case, which was lost on a close vote. One justice in the majority, Anthony Kennedy, was so concerned about women receiving the protection of federal law enforcement that he wrote a separate opinion suggesting alternative methods. Congress remedied this setback by passing the Freedom of Access to Clinic Entrances Act in 1994. (emphasis added)

Here again lies the betrayal of the liberal agenda: rights shall be created by the courts, not by the legislature. Ms. Ellis seems genuinely disappointed that this issue was removed from her activist hands by Congress. In fact, this very paragraph shows that the system works. Women seeking to exercise their rights were denied the ability to do so. The executive branch did not believe it had an obligation to act, and it did not. The issue was litigated, but the final outcome based on the reasoned interpretation of a federal statute did not favor the plaintiffs. The law provided no protection.

That's when public opinion and elected officials put the issue to rest by, gasp!, passing a law to solve problem. There it is. Our democracy and system of checks and balances at work and working in a nutshell. God bless America!

But instead of hanging her flag and waiving a sparkler or two, Ms. Ellis is instead holding this against Roberts!

As with other controversial positions he took as a government lawyer, Roberts should be questioned about whether his particular arguments in Bray represent his own beliefs. More fundamentally, however, he should be asked what role he believes the federal government has in protecting civil rights and women's rights, particularly in the face of state recalcitrance or inadequate resources.

First of all, how is it "controversial" for Roberts to take a position on a law that the Supreme Court agreed with him on in a 6-3 vote? If anyone's position was controversial (using an unrelated law from 1871) it was Ms. Ellis's. She lost, after all.

Second, we have again the old reliable racial and sexist bogeyman red herring. And think about it: If it is fair to hold the arguments Roberts made in a brief advocating the government's position against him, I wonder, will we ever see ascend to the Bench that champion of the rights of poor minorities and women, the public defender, if this argument holds? I mean, what if he defended a child molester or a serial killer or a terrorist or a rapist? Should we hold it against him if he/she submitted briefs on behalf of such miscreants, or shockingly, did his job and defended these monsters in court?

Of course not. If that was the case we wouldn't have a certain Justice Ruth Bader Ginsburg on the court, she the former head of the ACLU. The ACLU defends the rights of the convicted and unpopular on a daily basis. I would love to see the library of briefs she submitted or approved!

So let us conclude:

It goes too far to label Roberts as a fellow-traveler with Operation Rescue.Distance ourselves from the NARAL ad...B-b-b-b-b-b-but (of course, state the fact then make a similarly distasteful allusion):But if he subscribes to such a crabbed view of federal civil rights authority that he would jeopardize the rights -- and even the safety -- of half the population, that distinction may not matter. There you have it. John Roberts should not be confirmed because he does not think an 1871 law enacted to protect newly freed slaves applies to women seeking abortions in 1993. This makes him 1) a sexist, 2) somehow (always somehow) a racist, and 3) a physical danger to the safety of women.

Are you now, courtesy of the assistant dean of NYU law school, convinced that the John Roberts portends the end of women's rights AS WE KNOW THEM? If not, there is probably a rather large club you could join.